Supreme Court of New York, Appellate Division affirmed trial court’s grant of summary judgment in favor of plaintiff on issue of liability where plaintiff made prima facie showing of negligence against defendant, who failed to raise triable issue of fact.

The plaintiff was struck by the defendant’s vehicle as she crossed the street. Through deposition testimony, the plaintiff demonstrated that she crossed in the cross walk, observed traffic prior to walking, and the defendant was negligent for failing to yield to the right-of-way. The defendant contended that the plaintiff was not in the cross walk at the time of impact, but also testified that he did not see her until after the accident. The trial court granted summary judgment because the defendant’s testimony was speculative given that he did not see the plaintiff until after the impact. 

The Supreme Court of New York, Appellate Division held that a plaintiff is no longer required to show freedom from comparative fault to establish her prima facie case. Given that the defendant did not raise an issue of triable fact, the grant of summary judgment was affirmed. 
 

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